Reversing existing Board precedent, the National Labor Relations Board (“Board” or “NLRB”) recently ruled that employers that allow employees access to work e-mail systems must presumptively allow their employees to use those e-mail systems for union activity during non-work time. This reversal of long-standing precedent has potentially far-reaching consequences and, at minimum, will require both union and non-union employers to review their communications policies to ensure compliance with the National Labor Relations Act (“NLRA”).
The Board based its decision in part on the increasingly pervasive use of e-mail in the workplace and determined that e-mail has become a “natural gathering place” for employees to discuss work-related matters. Consequently, the Board found it must adapt its policies to the changing technological landscape of the workplace. Under the new standard, the Board presumes that employees who have access to their employers’ e-mails systems in the course of their employment may use those e-mail systems to engage in NRLA–protected communications on non-working time. An employer may ban the right to use its e-mail systems for non-work activity only by demonstrating “special circumstances” necessary to maintain production and by establishing the connection between the restriction and the interest it aims to protect. Importantly, the decision notes that a pre-existing policy banning employee use of work e-mail for non-work purposes does not constitute a special circumstance under the new rule. The Board anticipates that these special circumstances will only be present in “rare” cases but states that employers may nevertheless apply “uniform and consistently enforced” rules regarding use of work e-mail systems if necessary to maintain production and discipline.
This decision is limited in several important respects—chiefly in that the new rule applies only to those employees that have access to work e-mail systems. Employers are not now required to grant employees or nonemployees access to their e-mail systems where they have previously chosen not to. Furthermore, the decision does not aim to authorize employees to use work e-mail for union purposes during working time.
Despite these limitations, it is clear that this newly established rule will pose challenges for employers and will potentially open the door for subsequent challenges to restrictions on employee use of employer property for protected activities. Most troublingly, the Board’s decision expressly rejects the “supposed principle” that employers may prohibit employees from using employer equipment for non-work purposes. Furthermore, employee use of work e-mail systems for protected activities poses complications for employers that customarily monitor those communication systems for management purposes. Member Miscimarra’s dissent identifies additional consequences of the majority’s decision, including the erosion of the “work time is for work” principle, losses of productivity, and confusion regarding restrictions on access to work areas by off-duty employees.
In light of the NLRB’s newly articulated standard, employers are wise to reevaluate their policies related to e-mail use and consider whether any revisions are necessary for compliance.